Bienenfeld v. Fresno Milling Co.

Sharpstein, J. This is an appeal from a judgment and order of the superior court of Fresno County dismissing a writ of certiorari, and affirming a judgment of a justice’s court in the above-entitled action.

The judgment of the justice’s court is in favor of the defendant and against the plaintiff for the sum of $106.65, costs incurred by defendant in said action, in which there was a verdict and judgment in his favor.

We think the appellate jurisdiction of this court does not extend to such a case. This court has “appellate jurisdiction in all cases in equity, except such as arise in justice’s courts; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or [426]in which the demand exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; also, in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance, and in all such probate matters as may be provided by law; also, in all criminal cases prosecuted by indictment- or information in a court of record on questions of law alone.” (Const., art. 6, sec. 4.)

This case does not appear to be within the appellate jurisdiction of this court, as defined by the constitution. Therefore we cannot entertain jurisdiction of it. If there had been an appeal from the justice’s to the superior court, we are confident that no appeal from the judgment of the latter to this court would have been attempted.

Our appellate jurisdiction is the same in both cases.

Not-having jurisdiction of the appeal, we must dismiss it. The only embarrassment we experience in arriving at this determination is caused by the omission of respondent to raise the point. But we cannot proceed further in a case after discovering that we have no jurisdiction, whether the point is raised by counsel or not.

Appeal dismissed.

Thornton, J., and McFarland, J., concurred.